It’s Always Midnight at the Bottom of the Marianas Trench

By January 7, 2009Energy, Regulations

There’s been much huffing on the activist left about “Midnight Regulations” being issued by the Bush Administration, that is, the supposedly last-minute surprises that the White House and agencies are springing on the public without adequate notice.

Groups like the American Association for Justice (trial lawyers), the Sierra Club (environmentalists), and ProPublica (activist, anti-business journalism) have all pounded the table against this circumvention of the regulatory and oversight process. But in most cases, these regulations have been in the works for many months if not years and have indeed followed standard practice, in line with OMB’s instructions to avoid the shortcuts and gaming that undermines the implementation of these rules.

What’s really going on here is an effort to delegitimatize the substance of the regulations, especially those that attempt to encourage energy production while maintaining public health and safety. These groups have all lost their arguments during the drafting and public comment period on the rules, so now they try a process attack against the outcome.

Why else haven’t we seen an outcry against President Bush’s announcement this week that is he is using his executive branch authority to declare national monuments in three areas of the Pacific Ocean – in total, the largest fully protected area in the world, 195,274 square miles worth? It’s an astonishingly far-reaching expansion of government control over vast regions, done not after a full policy debate in Congress but instead with a stroke of the president’s pen. Are any of the groups aggrieved over “midnight regulations” upset with this display of executive branch authority?

To its credit, at least OMB Watch acknowledges the President’s actions, trying to distinguish it from “midnight regulations” in a blog post, “Last-Minute Ocean Conservation from Bush“:

Bush’s conservation move comes not by agency regulations, but by powers granted to presidents under the Antiquities Act of 1906, according to the Post. Though the regulatory machine is shutting down, Bush has other ways of advancing his policies. Executive orders, proclamations, and the like — though easier for future presidents to undo — remain an option for Bush until his final minutes in office.

Well, then, shouldn’t OMB Watch and its allies among the anti-Bush-regulation crowd be as exercised about the new Marine Monuments as they are about the “midnight regs?”

Sure they should be, but they’re not, which tells us it’s not the midnight that offends them, it’s Bush keeping the clock.

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